N.J. Admin. Code § 7:7-9.27

Current through Register Vol. 56, No. 11, June 3, 2024

Section 7:7-9.27 - Wetlands

(a) Wetlands or wetland means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation.

1. Wetlands areas are identified and mapped on the following:

i. National Wetlands Inventory Maps produced by the U.S. Fish and Wildlife Service at a scale of 1:24,000 (generalized locations only);

ii. Coastal wetland maps, pursuant to the Wetlands Act of 1970 (13:9A-1 et seq.) prepared by the DEP at a scale of 1:2,400; and

iii. Freshwater wetland maps prepared by DEP at a scale of 1:12,000 (generalized locations only).

Note: Maps referenced in (a)1ii above are available from the Division of Land Use Regulation at the address set forth at N.J.A.C. 7:7-1.6, and those referenced in (a)1iii above are available through NJ-GeoWeb (see http://www.nj.gov/dep/gis/geowebsplash.htm).

2. Generalized locations of some wetland types can be found in county soil surveys prepared by the U.S. Department of Agriculture, Soil Conservation Service.

3. The maps referenced under (a)1i, iii, and 2 above shall be useful as an indicator to assist in the preliminary determination of the presence or absence of wetlands only. They have been determined to be unreliable for the purposes of locating the actual wetlands boundary on a specific site.

4. All tidal and inland wetlands, excluding the delineated tidal wetlands defined pursuant to N.J.A.C. 7:7-2.3, shall be identified and delineated in accordance with the USEPA three-parameter approach (that is, hydrology, soils, and vegetation) specified under N.J.A.C. 7:7A-1.3 of the Freshwater Wetlands Protection Act Rules.

(b) Development in wetlands defined under the Freshwater Wetlands Protection Act is prohibited unless the development is found to be acceptable under the Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A, except as provided at (b)1 below. Pursuant to the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-6, coastal activities under the jurisdiction of the New Jersey Meadowlands Commission shall not require a Freshwater Wetlands permit, or be subject to transition area requirements of the Freshwater Wetlands Protection Act, except that discharge of dredged or fill materials may require a permit issued under the provisions of Section 404 of the Federal Water Pollution Control Act of 1972 as amended by the Federal Clean Water Act of 1977, or under an individual or general permit program administered by the State under the provisions of the Federal Act and applicable State laws. Accordingly, under this rule the Department does not exert jurisdiction under the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq., in the Hackensack Meadowlands District. However, the Department shall, in accordance with N.J.S.A. 13:9B-6 and applicable law, review any such coastal activity or development as follows:

1. For the purposes of reviewing a coastal activity or development that proposes the placement of dredged or fill materials in wetlands located waterward of the mean high water line in the Hackensack Meadowlands District under the Waterfront Development Law, N.J.S.A. 12:5-3, Federal Consistency provisions of the Federal Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq., or water quality certification under Section 401 of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq., the Department shall use the conditions, limits, and requirements governing activities or developments in wetlands set forth in the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-5, 7, 9, and 10. For the purposes of reviewing a coastal activity or development that proposes the placement of dredged or fill materials in wetlands landward of the mean high water line that does not require a zoning certificate, resolution, or statement of consistency from the New Jersey Meadowlands Commission pursuant to N.J.A.C. 7:7-9.43(c) in the Hackensack Meadowlands District under the Federal Consistency provisions of the Federal Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq., or water quality certification under Section 401 of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq., the Department shall use the conditions, limits, and requirements governing activities or developments in wetlands set forth in the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-5, 7, 9, and 10.

i. The mitigation requirements at (i) below shall apply to any coastal activity or development reviewed under this subsection, unless, where the coastal activity or development is reviewed under the conditions, limits, and requirements of the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-4 and 5, those conditions, limits, and requirements do not require mitigation.

(c) Except as provided at (d) below, development of all kinds in all other wetlands not defined in (b) above is prohibited unless the Department can find that the proposed development meets the following four conditions:

1. Requires water access or is water oriented as a central purpose of the basic function of the activity (this rule applies only to development proposed on or adjacent to waterways). This means that the use must be water dependent;

2. Has no prudent or feasible alternative on a non-wetland site;

3. Will result in minimum feasible alteration or impairment of natural tidal circulation (or natural circulation in the case of non-tidal wetlands); and

4. Will result in minimum feasible alteration or impairment of natural contour or the natural vegetation of the wetlands.

(d) The establishment of a living shoreline in wetlands to address the loss of vegetated shorelines and habitat in the littoral zone is conditionally acceptable provided the living shoreline complies with 7:7-12.23. Where the Department finds the establishment of a living shoreline acceptable, mitigation shall not be required.

(e) Dumping solid or liquid wastes and applying or storing certain pesticides on wetlands are prohibited.

(f) No action by the Commissioner shall prohibit, restrict or impair the exercise or performance of the powers and duties conferred or imposed by law on the Department of Environmental Protection, the Natural Resource Council and the State Mosquito Control Commission in said Department, the Department of Health, or any mosquito control or other project or activity operating under or authorized by the provisions of chapter 9 of Title 26 of Revised Statutes. This rule does not supersede the authority of the State Mosquito Commission to undertake mosquito control projects authorized by chapter 9 of Title 26 of the Revised Statutes.

(g) Development that adversely affects white cedar stands such as water table drawdown, surface and groundwater quality changes and the introduction of non-native plant species is prohibited.

(h) For projects which require a waterfront development permit, the use of former dredged material management areas for continued placement of dredged material is conditionally acceptable provided:

1. The site has existing dikes or berms in sound condition, and/or has sufficient volume of previously placed dredged material with suitable geotechnical and engineering properties within the dredged material management area to allow for the construction or reconstruction of structurally sound dikes or berms. Where the construction or reconstruction of structurally sound dikes and berms is required:

i. These structures shall be designed:

(1) By a New Jersey licensed professional engineer; and

(2) In accordance with the requirements of Appendix G; and

ii. Any material placed on the exposed surfaces of the dikes and berms shall comply with the appropriate Soil Remediation Standards ( N.J.A.C. 7:26D Appendix 1);

2. There are no anticipated adverse effects on threatened or endangered species;

3. There are no colonial nesting birds present on site which would be adversely affected (seasonal restrictions may be required);

4. No wetlands regulated pursuant to the Wetlands Act of 1970 would be adversely affected;

5. The former dredged material management area is not subject to daily tidal inundation, and the vegetation community is limited primarily to scrub/shrub or phragmites; and

6. The required waterfront development permit and water quality certificate are obtained.

(i) If an application to disturb or destroy wetlands meets the standards for permit approval, the Department will require the applicant to mitigate for the loss or degradation of the wetlands in accordance with N.J.A.C. 7:7-17.

(j) Rationale: The environmental values and fragility of wetlands have been officially recognized in New Jersey since the passage of the Wetlands Act of 1970 ( 13:9A-1 et seq.) and the passage of the Freshwater Wetlands Protection Act of 1987 ( 13:9B-1 et seq.). Tidal and freshwater wetlands are the most environmentally valuable land areas within the coastal zone.

Wetlands contribute to the physical stability of the coastal zone by serving as (i) a transitional area between forces of the open sea and upland areas that absorb and dissipate wind-driven storm waves and storm surges, (ii) a flood water storage area, and (iii) a sediment and pollution trap.

Also, wetlands naturally perform the wastewater treatment process of removing phosphorous, nitrogenous, and other water pollutants, unless the wetlands are stressed.

The biological productivity of New Jersey's wetlands is enormous and critical to the functioning of estuarine and marine ecosystems. The emergent cord grasses and associated algal mats convert inorganic nutrients into organic plant material through the process of photosynthesis. In this way, the primary base for estuarine and marine food webs is provided. The principal direct dietary beneficiaries of organic wetland detritus are bacteria and protozoan, which are in turn fed upon by larger invertebrates. Important finfish, shellfish, and other resources feed upon these invertebrates. New Jersey's wetlands are prime wintering habitat annually for hundreds of thousands of migratory waterfowl. Approximately two-thirds of marine finfish and shellfish are known to be estuarine, and, therefore, wetlands dependent.

Inland herbaceous wetlands, such as bogs and marshes, play an important role in regulating the quality of the water in streams that flow to the estuaries. They retard runoff and store storm waters. They are important areas for primary productivity for estuarine systems. They are critical habitats and movement corridors for several species of plants and animals that are endangered or threatened.

They are productive habitats for other game and non-game animals, such as fur bearers and song birds. These wetlands also serve as fire breaks and may limit the spread of forest, brush, or grass fires. They are inappropriate development sites due to poor drainage and load bearing capacity of the underlying soils.

Forested wetlands play a critical role in coastal and other ecosystems. Roots and trunks stabilize shorelines and trap sediment. They are physical and biochemical water filter areas maintaining stream water quality. High productivity, high water availability, and high edge to area ratio make these areas especially productive wildlife areas.

White cedar stands, as well as other lowland swamp forests, play an important role in purifying water in coastal streams, retarding runoff, providing scenic value, and serving as a rich habitat for many endangered plant and animal species, as well as game species, such as deer. White cedars also act as forest fire breaks. White cedar stands most commonly occur in flood plains and in the fringe areas of drainage ways and bogs, which are frequently underlain with saturated organic peat deposits. This material is particularly unsuited for development.

White cedar is New Jersey's most valuable timber species and grows in discrete stands. The wood has a long tradition of maritime and local craft uses. Unfortunately, white cedars have been eliminated from much of their previous range in New Jersey.

New Jersey's coastal environment is dynamic, and shaped by natural forces such as wind, waves, and storms. To protect development from these forces, shorelines are typically armored with hard structures such as bulkheads, gabions, or revetments. Shorelines lost due to erosion eliminate intertidal habitat, reduce the amount of sandy beach, and decrease the amount of organic matter necessary to maintain tidal wetlands. This erosion results in the degradation of the coastal environment through impacts to natural habitats, such as tidal wetlands, intertidal and subtidal shallows, and spawning grounds. Coastal states are seeking natural solutions, such as the creation of living shorelines, to address erosion as an alternative that adds diversity to other shore protection measures. Living shorelines are a shoreline management practice that addresses erosion by providing protection, restoration, or enhancement of vegetated shoreline habitats.

N.J. Admin. Code § 7:7-9.27

Renumbered from 7:7E-3.27 by 47 N.J.R. 1392(a), effective 7/6/2015

Amended by 49 N.J.R. 3849(a), effective 12/18/2017

Administrative Change, 51 N.J.R. 1193(a).